Revisiting the Right to Strike in India: A Call for Recognition as a Constitutional Right

Introduction

In August 2024, the Odisha government invoked the Essential Services Maintenance (ESMA) Act to suppress a crucial protest by healthcare workers, denying them their right to strike for safer, fairer working conditions. This move did not just stifle dissent—it spotlighted a growing crisis in India's public health system and democracy. This decision came after the Odisha Nursing Employees Association announced a cease-work agitation on August 27, demanding fair treatment and safer workplaces. The protests grew amid nationwide outrage over the brutal rape and murder of a doctor in the metropolitan city of Kolkata, which led healthcare professionals to demand better security and working conditions. However, instead of addressing these concerns, the Odisha government used ESMA to silence nurses, pharmacists, paramedics, and technicians in government and autonomous health institutions, ignoring their grievances. Despite this, nursing officers continued their protest by wearing black badges and planned to hold a rally in Bhubaneswar on August 23 to push for their demands, including workplace safety, fair wages, and improved working conditions [1].

This confrontation raises a deeper constitutional question: Do the millions of Indian workers truly have the right to strike? The "right to strike" is a fundamental aspect of labour rights recognised and encouraged by the International Labour Organisation (ILO) through its Committee on Freedom of Association (CFA) [2]. It is a powerful tool for employees and unions to safeguard and advance their financial objectives. However, the legal recognition and extent of the right to strike differ by jurisdiction. In India, the right to strike has been disputed, with Indian courts frequently rejecting its existence as a fundamental right under the Constitution [3].

There should be a more expansive recognition of the right to strike as a fundamental right under the ambit of the Indian constitutional framework, aligning with global standards and the principles of socialism and social justice enshrined in the Indian Constitution.

What is the Right to Strike?

The CFA, a part of the ILO, supports the right to strike as a fundamental right for workers and their unions to protect their economic interests [4]. It is also regarded as an essential corollary to the Right to Organise, which is a protected right [5].

A report from the 81st International Labour Conference on “Freedom of Association and Collective Bargaining” discusses the Right to Strike and outlines, “Any work stoppage, however brief and limited, may generally be considered as a strike.” The report recognises that although conventional strikes entail a complete work stoppage, alternative methods, such as "go-slow" strikes, where employees intentionally diminish productivity, and "work-to-rule" actions, where workers adhere strictly to regulations to impede operations, can equally disrupt employers and industries and thus be considered strikes [6]. The report also defines “strike picketing” as an attempt to increase the number of people staying away from work and ensure the strike's success [7].

This is crucial as it underscores that workers' collective efforts to champion their rights extend beyond work stoppages. This also illustrates the development of labour strategies, wherein employees may employ alternative protest methods to circumvent restrictive labour laws or alleviate economic difficulties while still applying pressure on employers. The acknowledgement of these actions as legitimate forms of striking enhances workers' negotiating power and guarantees that labour laws remain flexible to various types of industrial action.

The right to strike is based on many ILO conventions and resolutions, as well as CFA verdicts. First, there is the 1948 Freedom of Association and Protection of the Right to Organise Convention, sometimes known as “Convention 87”. According to Article 3(1) of the Convention, workers' and employers' organisations have the right to create their own constitutions and standards, freely elect representatives, organise their administration and activities, and develop their plans. Article 3(2) prohibits public bodies from interfering with or hindering the legitimate exercise of this right [8].

ILO’s principles, in the event of an absence or restriction of the Right to Strike, impose a duty on the state to provide the workers with compensatory guarantees, such as conciliation and mediation procedures. If deadlock occurs between workers and employers, an arbitration machinery should be established as per the ILO, with parties having the opportunity to participate in the process. The arbitration should be binding, fast, and implemented quickly and completely [9]. However, any form of compulsory arbitration is discouraged as it is contrary to the right of trade unions to organise their activities freely [10]. It is acceptable only if it has been requested by both parties in the dispute or if the strike is vulnerable to a ban owing to legislation on public or essential services [11]. Even if any such arbitration is taken as a recourse, the system should be independent and not influenced by legislative criteria to ensure the trust of the parties involved [12].

Legal Framework Around Strikes in India

The Industrial Disputes Act of 1947 defines "strike" as the cessation of work, which can be achieved through a combination of employees, a concerted refusal, or a common understanding among any number of employees to refuse work or accept employment [13]. The ILO expands the definition by incorporating alternative forms of industrial action, including go-slow strikes (which reduce productivity) and work-to-rule (strict compliance with regulations), which may not entail a complete work stoppage, yet can still impede operations. ILO's expansive interpretation recognises the evolution of labour strategies, thereby ensuring the efficacy of workers' collective actions despite restrictive national labour legislation. On the other hand, the Indian definition emphasises direct work stoppage, potentially overlooking indirect yet equally significant strike methods.

Nevertheless, the definition of strike under this Act is given a quite wide ambit by the Supreme Court of India. Particularly, the intention to act against management is not essential to the concept of a strike. So, the Supreme Court has held that when workers collectively abstain due to unrelated reasons or concerns about the employment conditions of other workers under different managements, such an act is considered a strike [14].

The Supreme Court ruled that the validity of a strike is a question of fact because a trade union's primary objective is collective bargaining for higher basic pay, allowances, and leave. A "question of fact" refers to an issue that depends on evidence and factual circumstances, rather than legal interpretation. If demands are made and a strike is resorted to force the company to agree or initiate negotiations, the strike must be considered justified [15].

Still, the right to strike is not a right enshrined in the Constitution of India, and Indian courts have refused to recognise it as a part of the fundamental right to form an association guaranteed by Article 19(1)(c) of the Constitution [16].

A Brief of the Case Laws

The Supreme Court in India Bank Employees' Assn. v. National Industrial Tribunal refused to read the right to strike into Article 19(1)(c) of the Indian Constitution [17]. The Court approached the reading of Article 19(1)(c) in the light of the restrictions imposed by 19(4). The Court held that the right guaranteed in Article 19(1)(c) could encompass all necessary rights for an association to fulfil its purpose, including those not only based on literal interpretation but also considering various fields where associations or unions of citizens can legitimately engage themselves. However, it also held that as a consequence of this interpretation, the restrictions for these rights would be more extensive and varied than those in Article 19(4).

The Supreme Court's principal concern was whether, if the right to strike is granted by Article 19(1)(c), a restriction on it in the interests of the general public, such as the national economy, is justified when examined against the requirements in Article 19(6). However, it may not be accepted as a justifiable constraint on the right to strike based on morals or public order. As a result, it was concluded that even a liberal reading of Article 19(1)(c) cannot ensure trade unions' right to effective collective bargaining or to strike, whether as part of collective bargaining or not. According to the court, constitutional guarantees should be interpreted liberally to fulfil their intended purpose, but courts must avoid unnatural or ideologically driven interpretations that distort the actual meaning of the text. As a result, industrial law can govern or restrict the right to strike or lockout, but its legitimacy must be examined differently than the requirements specified in Article 19(4). Thus, the Court concluded that the right to strike cannot be considered an automatic constitutional guarantee under Article 19(1)(c), and industrial law must govern or restrict it through different criteria, including balancing national interests.

Thereafter, the Supreme Court discussed the issue of the right to strike again in Radhey Shyam Sharma v. Post Master General, Central Circle. This is an interesting case because the Supreme Court discussed the inclusion of the right to strike under Article 19(1)(a), which is related to freedom of speech and expression, and Article 19(1)(b), on the freedom of peaceful assembly [18]. The Supreme Court held that a review of Article 19(1) reveals that there is no fundamental right to strike. This decision dismissed the right to strike as a fundamental right, relying on the earlier discussed All India Bank Employees' Assn. v. National Industrial Tribunal, which was considering it under Article 19(1)(c), related to freedom of association, instead of Article 19(1)(a) or Article 19(1)(b) [19]. Thus, Radhey Shyam Sharma further reinforced the Court's position that the right to strike does not qualify as a fundamental right under the Indian Constitution, regardless of whether it is framed under freedom of speech or peaceful assembly.

Finally, the most recent case on this issue is T.K. Rangarajan v. Govt. of T.N., which discusses the right to strike at length [20]. The Supreme Court held that there is no fundamental right to strike under the Indian Constitution. The Court relies on the previous judgments mentioned to come to this conclusion. Additionally, it relies on Communist Party of India (M) v. Bharat Kumar to reinforce the point that any activity that violates the fundamental rights of the citizens cannot be allowed [21]. Thus, T.K. Rangarajan reinforced the Court's consistent rejection of the right to strike as a fundamental right, strengthening the argument that such a right should not be automatically guaranteed under the Constitution.

A Case for Fundamental Right to Strike: Interpreting 19(1)(c)

First, it needs to be established that the right to strike is a part of 19(1)(c). The constitutional provision related to the right to strike is Article 19(1)(c) of the Indian Constitution, which stipulates that "all citizens shall have the right to form associations, unions, or co-operative societies." This fundamental right is also acknowledged by the 1948 Universal Declaration of Human Rights (UDHR). Article 20 of the UDHR also grants the right to association, and it permits people to form and join trade unions in order to protect their interests under Article 23(4).

However, the state is allowed to put reasonable restrictions on the exercise of freedom of association under Article 19(4) of the Indian Constitution, based on India's integrity, public order, sovereignty, or morality. This is also analogous to the limitations imposed by Article 29(2) of the UDHR, which also allows restrictions on the right to freedom of association on similar grounds.

ILO recognises the right to strike as a corollary of the right to organise [22]. The Supreme Court in All India Bank Employees' Assn. v. National Industrial Tribunal also recognised that the right to strike could be considered under Article 19(1)(c) as Article 19(1)(c) guarantees all necessary rights for associations to fulfil their purpose, considering not only literal interpretation but also various fields where citizens can legitimately engage themselves [23]. The Supreme Court’s refusal to read the right to strike into Article 19(1)(c) primarily hinges on the reading of Article 19(4), which does not have the appropriately applicable restrictions in the Court’s opinion. The court accepts that a reasonable restriction on the broad ground of “interests of the general public” could be an appropriate restriction on the right to strike, as it can be interpreted to include the national economy. The court does not consider the grounds of morality or public order to be sufficient to curb the “illegal strikes.” However, this reasoning is faulty.

‘Public order’ as a ground for reasonable restriction is wide enough to cover the required restrictions on the right to strike. While the Industrial Disputes Act of 1947 covers the modalities of an illegal or legal strike, the primary legislations that are concerned with the restriction over-exercising of the right to strike are the Essential Services Maintenance Act 1968 (‘ESMA’) and the respective State and Central Government Service Rules.

The objective of the ESMA is the maintenance of certain essential services and the normal life of the community. This could directly be interpreted as a ground under public safety, which in itself has been interpreted to be a part of the “public order” [24]. In fact, interference with the supply or distribution of essential commodities or services has been held to be against public safety [25]. The same can be said for the restrictions imposed on government employees. Legislations such as the Tamil Nadu Government Servants Conduct Rules, 1973 already exist to regulate strikes of government employees [26]. Therefore, the argument that the grounds of restrictions given under Article 19(4) are not enough to restrict the right to strike when required, and this right should be left to be regulated by particular legislation, does not stand. Furthermore, the right to strike is not the only fundamental right regulated by different legislations, while being a fundamental right in the Indian Constitution. The right to freedom of speech and expression under Article 19(1)(a), while having restrictions imposed by Article 19(2), has restrictions imposed on it by specific legislations like the Information Technology Act, 2000, and the Telegraph Act, 1885. If the state faces any difficulty with the exercise of the right to strike, it can regulate its exercise through specific legislation as it does with the exercise of the right to freedom of speech and expression.

The second case discussed is Radhey Shyam Sharma v. Post Master General, Central Circle, which should be revisited as it utilises a flawed approach to conclude that the right to strike is not a fundamental right. In this case, the Supreme Court considered a challenge to the right to strike as a fundamental right under Article 19(1)(a) and Article 19(1)(b). It is established in the discussion of All India Bank Employees' Assn. v. National Industrial Tribunal in the preceding paragraphs that the restrictions under Article 19(4) are sufficient and the right to strike can be read into Article 19(1)(c), so the dismissal of the right to strike as a fundamental right in this judgment is irrelevant because it is based on Article 19(1)(a) and Article 19(1)(b). Interestingly, the flawed approach used by the Court in this judgment is that the Court relies on All India Bank Employees' Assn. v. National Industrial Tribunal, which considers the right to strike under Article 19(1)(c) [27]. Thus, the flawed reasoning in Radhey Shyam Sharma further weakens its authority, highlighting the need for a more accurate understanding of the right to strike within the context of Article 19(1)(c) rather than Articles 19(1)(a) and 19(1)(b).

These reasons show that the position of the landmark judgment of T.K. Rangarajan v. Govt. of T.N., that the right to strike is not a fundamental right, does not stand, as it reiterates the legal position held in those three cases. However, it discusses the effect of strikes on society and the fundamental rights of other citizens to deny the right to strike, which the other cases did not.

First, the position that strikes do more harm to society than benefit workers is erroneous. Workers are a fundamental unit of society, and India is a socialist state. The principle of socialism is enshrined in the Constitution’s Preamble. The Indian state cannot turn a blind eye to the group of individuals, some of whom are present at the lowest level of its economy and carrying it [28]. Moreover, the court relies on Communist Party of India (M) v. Bharat Kumar to emphasise that any activity that violates citizens' fundamental rights cannot be allowed. However, that judgment is concerned about Bundhs and not strikes. The judgment itself specifies, “A call for a bundh is obviously distinct and different from the call for a general strike (...) The intention of the callers of the bundh is to ensure that no activity, either public or private, is carried on that day” [29] The Supreme Court of India has held that the working class’ interests must be prioritised and they must be given the benefit in interpretation, if any ambiguity in law exists. The judgment holds when the law is meant to protect vulnerable groups; in such cases, courts are justified in interpreting the law broadly[30]. The preamble of the Indian Constitution also mentions socialism as a principle, and the welfarist provisions of the Indian Constitution, as reflected in the Preamble, aim to ensure justice, equality, and dignity for all. These ideals are supported by Fundamental Rights and the Directive Principles of State Policy, which guide the State to promote social welfare, reduce inequality, and protect the interests of weaker sections, thus working toward a just and inclusive society. Therefore, the constitutional provisions must be read broadly, and relying on the Bundh case, which does not deal with strikes and explicitly differentiates between them, is not relevant to justify denying workers their right to collective bargaining and bettering conditions.

Conclusion

The Supreme Court needs to continue its liberal and welfarist practice of interpreting constitutional provisions to benefit the large and needy section of Indian society, as any measure less than reading right to strike as a fundamental right would not provide them with the essential writ jurisdiction to seek recourse. The right to strike should be read into Article 19(1)(c), in tandem with the ILO principles and its democratic counterparts like South Africa, which provides for the constitutional right to strike under Section 23(2)(c) of its constitution.

Bibliography

[1] “Odisha Govt Invokes ESMA Prohibiting Strike by Nurses and Paramedics,” The New Indian Express, August 22, 2024, https://www.newindianexpress.com/states/odisha/2024/Aug/22/odisha-govt-invokes-esma-prohibiting-strike-by-nurses-and-paramedics.

[2] International Labour Organization, Freedom of Association: Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO, 5th ed. 2006, ¶521.

[3] T.K. Rangarajan v. Govt. of T.N., (2003) 6 SCC 581 (India).

[4] International Labour Organization, Freedom of Association: Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO, 5th ed. 2006, ¶521.

[5] Ibid., ¶523.

[6] International Labour Conference, 81st Session, 1994: Report III (Part 4B), ¶173.

[7] Ibid., ¶174

[8] International Labour Organization, Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

[9] International Labour Conference, 81st Session, 1994: Report III (Part 4B), ¶164.

[10] International Labour Organization, Freedom of Association: Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO. 5th ed. 2006, ¶565.

[11] Ibid., ¶564.

[12] Ibid., ¶569.

[13] International Labour Organization, Freedom of Association: Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO, 5th ed. 2006, ¶565.

[14] Industrial Disputes Act, 1947, §2(Q) (India).

[15] Buckingham and Carnatic Co. Ltd. V. Workers, (1952) 2 SCC 521, ¶13 (India).

[16] Swadeshi Industries Ltd. v. Workmen, 1960 SCC OnLine SC 248, ¶4 (India).

[17] All-India Bank Employees' Assn. v. National Industrial Tribunal, 1961 SCC OnLine SC 5, ¶22 (India).

[18] Radhey Shyam Sharma v. Post Master General, Central Circle, 1964 SCC OnLine SC 269 (India).

[19] All-India Bank Employees' Assn. v. National Industrial Tribunal, 1961 SCC OnLine SC 5, ¶22 (India).

[20] T.K. Rangarajan v. Govt. of T.N., (2003) 6 SCC 581 (India)..

[21] Communist Party of India (M) v. Bharat Kumar, (1998) 1 SCC 201 (India).

[22] International Labour Organization. Freedom of Association: Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO. 5th ed. 2006, ¶523.

[23] All-India Bank Employees' Assn. v. National Industrial Tribunal, 1961 SCC OnLine SC 5, ¶22 (India).

[24] Romesh Thappar v. State of Madras, 1950 SCC 436 (India).

[25] State v. Ramanand Tiwari, 1955 SCC OnLine Pat 82 (India).

[26] T.K. Rangarajan v. Govt. of T.N., (2003) 6 SCC 581 (India).

[27] All-India Bank Employees' Assn. v. National Industrial Tribunal, 1961 SCC OnLine SC 5, ¶22 (India).

[28] “Annual Report, Periodic Labour Force Survey (PLFS), July 2023 – June 2024,” National Statistical Office, Ministry of Statistics and Programme Implementation, Government of India, 2024, https://www.mospi.gov.in/sites/default/files/publication_reports/AnnualReport_PLFS2023-24L2.pdf.

[29] Communist Party of India (M) v. Bharat Kumar, (1998) 1 SCC 201 (India).

[30] Royal Talkies, Hyderabad & Ors v. Employees State Insurance Corp, AIR 1978 SC 1478 (India).